Myers v. Colvin

Filing 25

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TANESHA MYERS,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 13-00099-B

ORDER
Plaintiff

Tanesha

Myers

(hereinafter

“Plaintiff”)

brings

this action seeking judicial review of a final decision of the
Commissioner of Social Security denying her claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.

On April 10,

2014, the parties consented to have the undersigned conduct any
and all proceedings in this case.

(Doc. 20).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

entry

of

judgment

in

accordance

with

636(c) and Federal Rule of Civil Procedure 73.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

ORDERED

Commissioner be REVERSED and REMANDED.

that

the

decision

of

the

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

benefits,

security income on November 9, 2009.

and

supplemental

(Tr. at 156).

Plaintiff

alleged that she had been disabled since August 31, 2009, due to
sleep disorder, problems with knees, asthma, and poor vision.
(Id. at 160).

Plaintiff did not allege a mental impairment of

any kind. (Id.).

Plaintiff’s applications were denied and upon

timely request, she was granted an administrative hearing before
Administrative Law Judge Vincent P. Intoccia (hereinafter “ALJ”)
on May 10, 2011.

(Id. at 28).

Plaintiff attended the hearing

with her counsel and provided testimony related to her claims.
(Id. at 30).

A vocational expert (“VE”) also appeared at the

hearing and provided testimony.
2011,

the

ALJ

issued

an

Plaintiff is not disabled.

(Id. at 45).

unfavorable

On June 13,

decision

(Id. at 23).

finding

The Appeals Council

denied plaintiff’s request for review on January 8, 2013.
at 1).

that

(Id.

The parties waived oral argument (Doc. 22), and agree

that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

42

U.S.C.

§§

405(g)

1383(c)(3).
II.

Issue on Appeal
Whether the ALJ erred in finding that Plaintiff
did not meet Listing 12.05C?

2

and

III. Factual Background
Plaintiff was born on December 1, 1988, and was twenty-two
years of age at the time of her administrative hearing on May
10, 2011.

(Tr. 31, 155).

Plaintiff testified that she was in

regular classes and completed the twelfth grade in high school,
but she was not able to pass the reading portion of the Alabama
High School Graduation Examination.

Thus, she did not receive

her diploma, and she has not obtained a GED.
Plaintiff

further

testified

that

she

(Id. at 31-32).

received

her

driver’s

license in 2009, that she had to take the oral examination three
times before passing it, and that someone generally drives her
around.1

(Id. at 37-38, 43, 47).

In her Function Report provided to the Agency, as well as
her

hearing

testimony,

Plaintiff

stated

that

she

worked

for

little over a year operating a sewing machine for a cap company,
and she also worked as a cashier in the fast food industry.
(Id. at 32-33, 47, 176).

In addition, Plaintiff reported that

she no children, and that before a house fire, she lived alone.
(Id. at 30-31, 37, 170-171).

According to Plaintiff, she takes

care of her personal needs; however, her mother performs her
household chores.

(Id.).

Plaintiff also testified that she

1

Plaintiff testified that she lost her house and her car in
a fire in 2010; however, it appears that even before the fire,
Plaintiff was doing very limited driving. (Id. at 34, 43).

3

goes shopping with her mother and her sisters, that she pays her
own bills, that she has never had a checking account, and that
she goes to church a couple of times a month.
43, 171).

(Id. at 37, 42-

Additionally, Plaintiff testified that she spends her

time watching television and writing to herself.
Plaintiff

testified

that

she

stopped

(Id. at 42).

working

in

2009

because she was laid off when the cap manufacturing company shut
down.

(Id. at 33).

According to Plaintiff, the “biggest thing”

that keeps her from working now is her leg pain.

Plaintiff

testified that she injured her left knee in gym class at school
in

2007,

and

had

to

have

arthroscopic

surgery

as

a

result.

Later, in 2008, Plaintiff was diagnosed with a meniscus tear
injury in her
Plaintiff

also

right

knee.

testified

(Id. at 34, 39,
that

she

has

low

41, 259, 339).
back

pain,

and

described the pain in her left and right knees as a seven or
eight on a ten-point pain scale.

(Id. at 36, 41).

Plaintiff

stated that she takes a muscle relaxer and uses pain gel for her
knees and back.2
IV.

(Id. at 35-36, 190).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

one.

The

Court’s

2

review

is

limited

to

Plaintiff listed no prescription pain medications in her report
to the Agency. (Tr. 194).

4

determining

1)

whether

the

decision

of

the

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

3

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

his

or

her

3

disability.

20

C.F.R.

§§

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5

404.1512, 416.912.

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 4

4

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6

§§ 404.1520, 416.920.
In

the

case

sub

judice,

the

ALJ

determined

that

while

Plaintiff had engaged in work activity after August 31, 2009, he
found that additional evidence was needed on this issue.

(Id.

at 10). In order to avoid delay, he elected to proceed with the
remaining steps of the evaluation process because he determined
that

the

record

disabled.

evidence

(Id. at 10-11).

established

that

Plaintiff

is

not

To that end, the ALJ determined at

step two that Plaintiff has the severe impairments of obesity,
mechanical

back

pain,

status

post

left

lateral

release

and

medial placation, hypertension, right torn meniscus, dysthymia,
and borderline intellectual functioning.

(Id. at 11).

The ALJ

further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.5

(Id.).

In determining that Plaintiff did not meet any Listing, the
ALJ made the following relevant findings:
4. The claimant does not have an impairment
or combination of impairments that meets or

5

Plaintiff’s only claim on appeal is that the ALJ erred at step
three in finding that she did not meet Listing 12.05C.
Therefore, the Court will address only that issue.
For the
ALJ’s findings at steps four and five of the evaluation process,
see Tr. 14-15, 21-23.

7

medically
equals
one
of
the
listed
impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
No treating or examining source or medical
expert has so concluded.
In addition, I
have examined the record, and I find that
the evidence does not
support such a
conclusion.
Thus,
I
find
that
the
claimant’s severe impairments, considered
singularly or in combination, are not of
listing-level severity.
. . .
At first glance, it might be argued that the
claimant’s impairment meets Listing 12.05.
In
this
regard,
the
claimant
was
administered the Wechsler Adult Intelligence
Scale – Fourth Edition on March 16, 2011.
She obtained the following scores: Verbal
Comprehension 70, Perceptual Reasoning 71,
Working Memory 71, Processing Speed 76, and
Full Scale IQ of 67. Dr. Donald W. Blanton
indicated that these scores placed the
claimant in the mild range of mental
retardation at the time of testing (Exhibit
16F).
Section 12.05 C (B or D) refers to
retardation, which is defined as significant
sub average general intellectual functioning
along with deficits in adaptive behavior
initially
manifested
before
age
22.
Significant
sub
average
intellectual
functioning is defined as an IQ of 70 or
below.
American Psychiatric Association,
Diagnostic and Statistical Manual of Mental
Disorders (3rd Edition). In this case, there
is no evidence of such alleged IQ prior to
age 22. Indeed the IQ test in question was
given to the claimant by a person hired by
the claimant’s attorney to perform the test
after the claimant’s 22nd birthday and in
fact after the claimant had applied for
disability and at a time when the claimant
clearly had the motivation to perform poorly
or to use less than her best efforts. . . .

8

In the instant case, the claimant has lived
independently until her trailer burned March
16, 2010.
The claimant has worked for a living as a
Cap Machine Worker which is semi-skilled in
nature.
Semi-skilled work is work in which
some skills are involved. There is no
indication in the record that any employer
has ever given the claimant any special
consideration due to any alleged retardation
or that any employer, physician, or any
other person has ever even noticed any
alleged retardation on the part of the
claimant.
The claimant has a driver’s license and
drove an automobile up until she had knee
surgery. She lost her car during the house
fire.
The claimant indicated on the Disability
Report that she completed the eleventh grade
and did not attend special education classes
(Exhibit 2E).
The school records reflect
that the claimant was enrolled in twelfth
grade classes through the fourth nine weeks
in
2008.
The
claimant
passed
the
Mathematics, Language, Science and Social
Studies portions of the Alabama High School
Graduation Examination (Exhibit 7E).
There
is no indication in the record that the
claimant was in “special education.”
. . .
In terms of the claimant’s alleged mild
mental
retardation,
the
claimant
was
referred by her attorney, Mr. Coplin for an
evaluation. The Wechsler Adult Intelligence
Scale-Fourth Edition was administered and
the claimant obtained the following scores:
Verbal
Comprehension
70,
Perceptual
Reasoning 71, Working Memory 71, Processing
Speed 76 and Full Scale IQ score 67.
Dr.

9

Blanton indicated that this score placed the
claimant in the mild range of mental
retardation at the time of testing. Dr.
Blanton indicated that the score was felt to
represent a valid assessment of her current
level of intellectual functioning as there
were no distracting factors during the
testing session and she appeared to put good
effort into her work (Exhibit 16 F).
The claimant did not allege any disability
due to mental impairments at the time the
application was filed. This is despite the
fact that the Disability Report specifically
requests information about all conditions
affecting the ability to work. . . . There
is no evidence of the use of any medications
designed to treat psychiatric or mental
symptoms. . . .
The claimant related to Dr. Blanton that she
lives with her mother. She does no cooking
or cleaning. Her mother does all the
housework.
She spends most of her day
watching Lifetime on the television channel
(Exhibit 16F).
The claimant has described
daily activities that are limited; however,
two factors weigh against considering these
allegations to be strong evidence, in favor
of
finding
disability.
First,
the
allegations cannot be objectively verified
with any reasonable degree of certainty.
Second,
assuming,
arguendo,
that
the
activities of daily living are as limited as
alleged, it is difficult to attribute that
degree of limitation with the claimant’s
medical
condition
as
opposed
to
other
reasons in view of the medical evidence of
record and other factors discussed in this
decision.
The record indicates that the claimant
stopped working due to a business related
layoff rather than because of the allegedly
disabling
impairments.
The
claimant
reported “I GOT LAID OFF FROM MY JOB.”
(Exhibit 2E). Further, there is no evidence

10

of
a
significant
deterioration
in
the
claimant’s medical condition since that
layoff.
A reasonable inference, therefore,
is that the claimant’s impairment would not
prevent the performance of that job, as it
was being performed adequately at the time
of the layoff despite a similar medical
condition.
I note that the claimant received previous
unemployment compensation from the third
quarter of 2009 to the third quarter of
2010, a program that requires you to certify
under oath that you are able to work. The
entire
issue
for
our
determination
is
whether the claimant is in fact able to work
or is in fact “disabled.”
Legally and
factually, it has to be one or the other.
The claimant cannot be able to work and also
be “disabled.”
A person who is “disabled”
is not able to work.
The claimant has
admitted and conceded in her application to
the State of Alabama that she is in fact
able to work. . . .
Dr. Blanton, in Exhibit 16F, offered a
medical source opinion form (mental) on
March 16, 2011, which reads as follows:
It
is
my
opinion
based
upon
my
examination and testing today, that
Tanesha V. Myers has marked limitations
that
seriously
interfere
with
her
ability
to
perform
work
related
activities on a day to day basis in a
regular work setting in the following
areas:
1.
Understanding detailed or
complex instructions.
2.
Carrying
out
detailed
or
complex instructions.
3. Remembering details or complex
instructions.
4. Use judgment in detailed or
complex work-related decisions.

11

5.
Maintain
attention
and
concentration
and
pace
for
a
period of at least two hours.
It is my opinion that her mental
retardation
has
been
a
lifelong
condition and that her depression and
anxiety problems have been present at
this level for at least one year. It is
also my opinion that her condition is
likely to deteriorate if she is placed
under stress especially that of a job.
It is my opinion that the patient
demonstrates
deficits
in
adaptive
functioning manifested prior to age 22
due to her mental retardation in the
following areas: communication, self
care, work, use of community resources,
and functional academic skills.
I give little weight to Doctor Blanton’s
opinion. It is emphasized that the claimant
underwent
the
examination
appearing
at
Exhibit 16F, that formed the basis of the
opinion in question, not in an attempt to
seek treatment for symptoms, but rather,
through attorney referral and in connection
with an effort to generate evidence for the
current appeal. Further, the doctor was
presumably paid for the report. Moreover,
Dr. Blanton is not a clinical psychologist.
He is a licensed professional counselor.
Although
such
is
permitted
and
not
prohibitive,
and
also
deserves
equal
consideration, the fact that the examination
was rendered in preparation for litigation
is a relevant factor for consideration (See
Dixon v. Apfel, 200 U.S. Dist. LEXIS 18073
(S. Dt. AL) (2000). . . .
The
claimant
has
not
been
under
a
disability,
as
defined
in
the
Social
Security Act, from August 31, 2009, through
the
date
of
this
decision
(20
CFR
404.1520(g) and 416.920(g)).

12

(Tr. 18-23).

The Court now considers the foregoing in light of

the record in this case and the issue on appeal.
1.

Issue
a. Whether the ALJ erred in finding that
Plaintiff did not meet Listing 12.05C?

Plaintiff argues that the ALJ erred in finding that she
does not meet the requirements of Listing 12.05C.
maintains

that

because she
physical

she

has a

has

met

valid

impairment

Full

that

the

criteria

Scale

imposes

of

work-related limitation of function.

Listing

I.Q. score

additional

Plaintiff

and

of

12.05C

67

and

a

significant

(Doc. 14 at 5-8).

The

Commissioner counters, however, that the ALJ properly found that
Plaintiff’s mental impairments do not meet or medically equal
Listing 12.05C because Plaintiff has not shown that she has
deficits in adaptive functioning, which is required in order to
meet the Listing.

(Doc. 18 at 6-7).

Having carefully reviewed

the record in this case, the Court finds that the ALJ’s decision
is not supported by substantial evidence.
As stated above, the Social Security regulations set forth
a five-step sequential evaluation process to determine whether a
claimant

is

disabled.

At

step

three,

the

claimant

has

the

burden of proving that an impairment meets or equals a listed
impairment.

See Harris v. Commissioner of Soc. Sec., 330 Fed.

13

Appx. 813, 815 (11th Cir. 2009) (unpublished) 6 (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).

To establish

presumptive disability under section 12.05(C), a claimant must
present evidence of “[a] valid verbal, performance or full scale
IQ of 60-70 and a physical or other mental impairment imposing
an

additional

and

significant

work-related

limitation

of

function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C).
In

addition,

the

claimant

must

also

satisfy

the

‘diagnostic

description’ of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 7 which
provides

that

mental

subaverage

general

adaptive

functioning

developmental

retardation

intellectual

period;

functioning

initially
i.e.,

“refers

the

to
with

manifested
evidence

significantly
deficits
during

demonstrates

in
the
or

6

“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.

7

On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
“intellectual disability.”
See Hickel v. Commissioner of Soc.
Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1)).
“This change was made because the term
‘mental retardation’ has negative connotations, and has become
offensive to many people.
Id.
(citations and internal
quotation marks omitted). “The Social Security Administration
stated that the change does not affect the actual medical
definition of the disorder or available programs or services.”
Id. (citations and internal quotation marks omitted). As in
Hickel, this opinion uses the term “mental retardation” and
“intellectual disability” interchangeably.

14

supports onset of the impairment before age 22.”

20 C.F.R. Part

404,

this

Subpart

“[g]enerally,

P,
a

Appendix

1,

claimant

§§

meets

12.05.
the

In

criteria

for

Circuit,

presumptive

disability under section 12.05(C) when the claimant presents a
valid I.Q. score of 60 to 70 inclusive, and evidence of an
additional mental or physical impairment that has more than a
‘minimal effect’ on the claimant’s ability to perform basic work
activities.”

Smith v. Commissioner of Soc. Sec., 535 Fed. Appx.

894, 897 (llth Cir. 2013)(quoting Lowery v. Sullivan, 979 F. 2d
835, 837 (11th Cir. 1992)).

Thus, a valid I.Q. score creates a

rebuttable presumption that the claimant manifested deficits in
adaptive functioning prior to the age of twenty-two.

See Hodges

v. Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001).
This

presumption

inconsistent

with

can

be

record

activities and behavior.

rebutted

evidence

when

of

a

the

IQ

score

claimant’s

is

daily

See Popp v. Heckler, 779 F.2d 1497,

1499-1500 (llth Cir. 1986).

Accordingly, the ALJ is tasked with

determining whether there is sufficient evidence (relating to
plaintiff’s daily life) to rebut the presumption.

See Grant v.

Astrue, 255 Fed. Appx 374, 375 (llth Cir. 2007); Hartman v.
Colvin,

2014

U.S.

Dist.

LEXIS

91467,

*7

(S.D.

Ala.

July

7,

2014).

For example, in Hickel v. Commissioner, 539 Fed. Appx.

980 (llth Cir. 2013), the Eleventh Circuit found that the ALJ
did not err where the ALJ acknowledged that the claimant had a

15

valid

IQ

score

established

by

between
Hodges,

60

and

and

70,

found

applied

that

the

the

presumption

presumption

was

rebutted by other evidence that showed that the claimant did not
have “deficits in adaptive functioning.”
984.

Id., 539 Fed. Appx. at

In reaching its decision, the court in Hickel noted that

the claimant did not dispute that she is a high school graduate;
she works part time at a nursery; she drives herself to work;
she prepares simple meals and dresses and grooms herself; she
attends church regularly; and she socializes with friends.
addition,

the

determined,
functional

Court

based

observed
on

capacity,

the

that

three

claimant’s

that

her

medical

better

mental

sources

than

impairment

In
all

expected
was

more

consistent with borderline intellectual functioning than mild
mental retardation.

Id. at 984-85.

In the case at hand, the undersigned finds, based on a
careful review of the record, that the ALJ did not apply the
proper

legal

standard

listing 12.05(C).
Blanton

when

determining

whether

Plaintiff

met

First of all, the record establishes that Dr.

administered

the

Wechsler

Adult

Intelligence

Scale-

Fourth Edition to Plaintiff on March 16, 2011, and she obtained
the

following

scores:

Verbal

Comprehension

70,

Perceptual

Reasoning 71, Working Memory 71, Processing Speed 76, and Full
Scale IQ score of 67.

(Tr. 12).

In his decision, the ALJ does

not make clear whether or not he deemed the IQ score to be

16

valid; however, he did state that “[i]n this case, there is no
evidence of such alleged IQ prior to age 22.”

(Id.).

As noted

supra, where a claimant presents a valid IQ score, the claimant
is entitled to the presumption recognized in Hodges, and as a
result, is not required to demonstrate deficits in more than one
area of adaptive functioning before the age of 22.

Accordingly,

to the extent the ALJ in this case found that Plaintiff’s IQ
score was valid, he erred because he did not accord her the
presumption recognized in Hodges.

See Grant v. Astrue, 255 Fed.

Appx. 374, 2007 U. S. App. LEXIS 26540 (llth Cir. 2007)(ALJ
erred

because

he

did

not

give

plaintiff

the

benefit

of

the

presumption recognized in Hodges, but instead required her to
demonstrate

deficits

in

more

than

functioning before the age of 22.

one

area

of

adaptive

Upon remand, the ALJ was

directed to determine whether there was sufficient evidence to
rebut the presumption that the plaintiff manifested deficits in
adaptive functioning before the age of 22).
Assuming, arguendo, that the ALJ determined that the IQ
score

was

not

valid,

invalidating the score.

he

did

not

proffer

valid

reasons

In his opinion, the ALJ noted:

Indeed the IQ test in question was given to the
claimant by a person hired by the claimant’s
attorney to perform the test after the claimant’s
22nd birthday and in fact after the claimant has
applied for disability and at a time when the
claimant clearly had the motivation to perform
poorly or to use less than her best efforts. It

17

for

is interesting to note that the claimant told Dr.
Blanton before the testing session that she could
not see out of her right eye very well but she
could not afford glasses.
(Tr. at 12-13).
The

fact

that

Plaintiff

may

have

been

referred

to

Dr.

Blanton by her attorney does not in and of itself provide a
basis for rejecting the scores from the IQ test administered by
Dr. Blanton.

Indeed, in Hickel v. Commissioner, the Eleventh

Circuit rejected a similar rationale and noted that there was
nothing in the record to reflect how the medical sources were
compensated, and that “generating evidence is the purposes of
obtaining opinions from medical sources, whether paid for by the
Commissioner or by the claimant.”

Hickel, 539 Fed. Appx. at

987.

fact

The

court

held

that

the

that

the

one

time

consultative examiner was retained by the claimant rather than
the Commissioner was simply not, standing alone, a valid basis
for rejecting his opinion.

Id.

In this case, there is nothing

which reflects who paid for Dr. Blanton’s services; however, the
fact that he was compensated for his services, and that he was
recommended

by

Plaintiff’s

counsel,

does

not

standing

alone,

provide a valid basis for rejecting his opinions nor the results
of his IQ testing.
Additionally,

in

rejecting

Dr.

Blanton’s

opinions,

and

presumably the IQ results, the ALJ noted that Dr. Blanton is not

18

a

clinical

psychologist,

but

is

a

licensed

professional

counselor who is permitted to administer testing.

Again, this

is not a valid reason for rejecting Dr. Blanton’s opinions or
his IQ testing.
that

Dr.

There is nothing in the record which suggests

Blanton

administering

the

did

not

Wechsler

follow
Adult

proper

testing

intelligence

protocol

Scale-IV

in

test.

While Dr. Blanton did note that Plaintiff complained that she
could not see very well out of her right eye, he opined that the
IQ

scores

were

a

valid

assessment

of

her

current

level

of

intellectual functioning, as there were no distracting factors
during the testing, and she appeared to put good effort into the
testing.

(Tr. 352).

In sum, the ALJ failed to provide valid

reasons for rejecting the IQ scores.
The undersigned further finds that the ALJ’s errors are not
harmless because it is not clear that the record evidence would
have

rebutted

the

presumption

of

deficits

in

adaptive

functioning before age 22.

First, while two of the consulting

medical

that

sources

opined

Plaintiff

had

borderline

intelligence, the evidence is undisputed that they did not have
the benefit of Plaintiff’s IQ scores, nor is there anything to
suggest that they administered any IQ testing to Plaintiff. 8

8

In

At the request of the Agency, Dr. Nina Tocci, Ph.D. conducted a
mental examination of Plaintiff on April 7, 2010.
Dr. Tocci
found that Plaintiff’s affect was appropriate, normal and
stable, that she was oriented to time, place, person and
19

fact, during Dr. Tocci’s mental health examination of Plaintiff,
she

noted

that

multiplication
backwards,

and

comprehension.
that

while

Plaintiff

problems,

incorrectly

was

demonstrated

a

(Id. at 269).

Plaintiff

took

unable

calculated

to

poor

perform

fund

of

change

serial

and

threes

information

and

Additionally, the record reflects

regular

classes

and

attended

high

school through twelfth grade, she did not graduate due to her
inability to pass the English portion of the graduation exam
after

multiple

attempts.

Notably,

the

record

reflects

that

Plaintiff successfully passed the non-English portions of the
exam after no less than five attempts.
the

evidence

reflects

that

while

(Id. at 200).

Plaintiff

has

a

Further,
driver’s

license, she had to take the oral examination three (3) times
before obtaining her license, and she is generally driven by
others.

Additionally, Plaintiff’s work history reveals that she

situation, and that she demonstrated distracted attention and
scattered concentration.
Dr. Tocci also observed that while
Plaintiff
demonstrated
appropriate
thought
content,
she
demonstrated a poor fund of information and poor social
judgment. Dr. Tocci also observed that Plaintiff “appeared to
be functioning within the borderline range of intellectual
ability”
and opined that her prognosis was guarded.
She
assigned Plaintiff a GAF of 60, and opined that she was
motivated to participate in the examination. (Tr. 270)
Dr. Donald Hinton, Ph.D., also completed a Mental RFC
Assessment at the request of the Agency on April 13, 2010. (Tr.
286-88).
Dr. Hinton reviewed the records and opined that
Plaintiff
has
“Estimated
Borderline
Intelligence”
and
“Dysthymia” and that she had moderate limitations in her mental
abilities. (Id.) (emphasis added).

20

had

one

fairly

short

term

semi-skilled

job

involving

the

operation of a sewing machine in a cap factory, and a string of
fast food positions.

Further, while Plaintiff is able to care

for her own personal needs, and at one point lived alone, her
daily activities are fairly restricted, and she relies upon her
mother to assist with chores, shopping, etc.
In light of the foregoing, the Court finds that the ALJ’s
determination that Plaintiff does not meet or medically equal
Listing 12.05C is not based on substantial record evidence.

As

noted supra, the ALJ did not proffer valid reasons for rejecting
Plaintiff’s IQ scores, and to the extent he did not reject the
scores, he did not afford Plaintiff the presumption of deficits
in

adaptive

functioning

to

which

she

is

entitled.

The

ALJ

likewise failed to determine whether the presumption had been
rebutted by the record evidence.

Because the ALJ did not apply

the correct standard in this case, this case must be REVERSED
and REMANDED.

See Hartman v. Colvin, 2014 U.S. Dist. LEXIS

91467 (S.D. Ala. July 7, 2014)(remanding case where it was far
from clear that had the ALJ applied the correct standard, the
evidence

would

have

supported

the

ALJ’s

finding

that

the

plaintiff did not meet Listing 12.05 (C)).
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the

21

parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be REVERSED and REMANDED.
DONE this 23rd day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22